‘Workplace rights’ and ‘adverse action’ considered


‘Workplace rights’ and ‘adverse action’ considered

The new provisions on ‘workplace rights’ and ‘adverse action’ in the Fair Work Act have received little publicity so far, but they may be the basis for debate and litigation as the new system unfolds.


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The new provisions on ‘workplace rights’ and ‘adverse action’ in the Fair Work Act have received little publicity so far, but they may be the basis for debate and litigation as the new system unfolds.
An earlier article on WorkplaceInfo reported on a debate on these concepts at a recent IR conference. 
This article looks more closely at the concepts themselves and provides examples.
What is a workplace right?
Section 340 states that a person must not take adverse action against another person because that person has a workplace right, has (or has not) exercised that right, proposes to exercise (or not exercise) that right, or has in the past proposed to exercise it (or not). A person also must not prevent or attempt to prevent another person from exercising his/her workplace right.
Section 341 states that a person has a 'workplace right' if he/she:
  • 'is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
  • is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
  • is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee — in relation to his or her employment.'
'Proceedings under a workplace law or instrument' includes:
  • a Fair Work Australia conference or hearing;
  • court or any other proceedings under a workplace law or agreement;
  • protected industrial action;
  • a ballot for protected industrial action;
  • making, varying or terminating an enterprise agreement;
  • appointing, or terminating the appointment of, a bargaining representative;
  • making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
  • agreeing to cash out paid annual leave or paid personal/carer's leave;
  • making a request for a flexible working arrangement;
  • using the dispute settlement provisions under a workplace law or instrument.
Note that the provisions also cover prospective employees, that is job applicants. For example, they prevent making job offers which are conditional on entering an individual flexibility arrangement, but not offers that are conditional on the employee accepting a guarantee of annual earnings.
What is 'adverse action'
Section 342 defines 'adverse action' to include the following actions by an employer:
  • dismissing an employee.
  • injuring an employee in his/her employment.
  • altering an employee’s position to his/her detriment.
  • discriminating against an employee or prospective employee.
  • refusing to employ a person.
  • terminating the contract of an independent contractor.
  • injuring a contractor in relation to the terms and conditions of the contract.
  • altering the contract to the contractor’s detriment.
  • refusing to use services provided by a contractor.
  • refusing to supply goods and services to a contractor.
  • discriminating against a contractor.
It is important to note that both prospective employees (job seekers and job applicants) and independent contractors fall within the scope of these provisions, not just current employees.
Actions by employees, contractors, and industrial associations
Section 342 also covers actions by employees, contractors, and industrial associations.
In the case of employees and contractors:
  • ceasing to work for the employer, or under the contract;
  • taking industrial action against the employer.
In the case of an industrial association, or one or more of its members:
  • taking industrial action against the employer;
  • taking action that has the effect, directly or indirectly, of prejudicing a person in his/her employment or prospective employment;
  • if the person is an independent contractor, taking action that has the effect, directly or indirectly, of prejudicing the contractor in relation to a contract for services;
  • imposing a penalty, forfeiture, or disability of any kind on a member of an industrial association (other than in relation to money he/she legally owes the association).
The scope of 'adverse action' in relation to exercising (or not exercising) a workplace right includes threatening to take action, organising to take action, coercion, undue influence or pressure, or knowingly or recklessly making a false or misleading representation about either the workplace rights of another person, or the exercise (or effect of exercise) of those rights.
Note that it does NOT include stand-downs in relation to protected industrial action, exercising the provisions of a contract that permits stand-downs, or actions that are authorised by other Acts or Regulations.
A person must not take adverse action against another person for the following reasons:
  • belonging or not belonging to an industrial association.
  • engaging in not engaging in industrial activities.
  • coercion, misrepresentation or inducement in relation to industrial action.
Civil penalty for breaches
A breach of any of the above provisions will currently attract a civil penalty of up to $6600 for an individual and $33,000 for a corporation under Part 4-1 of the Act.
An employee or prospective employee who believes a breach has occurred can refer the matter to Fair Work Australia to deal with the dispute. FWA may conduct a conference between the parties if they agree to one.
If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties of this view. FWA itself cannot arbitrate a dispute, but can make recommendations.
Some examples of scope of workplace rights
The Explanatory Memo to the Fair Work Bill set out several examples to indicate the scope of the workplace rights and adverse action provisions.
Some of these examples are paraphrased below.
  • A workplace has an enterprise agreement that provides for the appointment of a harassment officer. An employee performing this role is protected against adverse action in relation to carrying out that role.
  • Workplace health and safety representatives appointed under State legislation are protected against adverse action when fulfilling their roles.
  • An employee who reports a potential OHS issue to his/her employer (eg a faulty ladder) has a workplace right because he/she has made a complaint/inquiry to the employer.
  • An employee questions the employer about his/her take home pay amount, believing it to be wrong. When the employer fails to respond to the enquiry, the employee approaches his/her union for assistance. When the employer discovers the employee approached the union, it dismisses the employee. The employee has a workplace right because he/she asked the union about pay entitlements, and the union is a body that can seek compliance with a workplace instrument.
  • A part-time employee believes he is being underpaid and mistakenly complains to the ACCC about it and then tells the employer. The employer retaliates by reducing the employee’s work shifts. Although the ACCC does not have the power to seek compliance with award provisions, the employee has still exercised a workplace right because he/she made an employment-related complaint.
  • An employee is protected from adverse action if he/she exercises the right to reasonably refuse to work on a public holiday.
  • A union applies to FWA for an Equal Remuneration Order. Employees are protected from adverse action during the period between the application for the Order and FWA actually issuing it, plus of course once the Order is in effect.
  • Under the former Workplace Relations Act, it was unlawful to dismiss an employee because he/she participated in proceedings against an employer involving alleged breach of the law. Under the new protections, an employee is protected from the full range of adverse action (eg dismissal, refusal to employ, or injury to the employee in his or her employment) for this reason.
  • An employer approaches an employee about the possibility of cashing in his/her annual leave entitlement, claiming the business would have to close temporarily if the employee took leave, because the absence could not be covered. The employee feels obliged to agree to the manager’s request. This could amount to exerting undue influence or pressure, but would not be if the manager made it clear that he/she was merely exploring all possible options and the employee was in no way obliged to cash in the leave.
  • A manager asks an employee to agree to an individual flexibility arrangement which varies working hours to cater for customer service needs, but says that if the employee does not agree, the employer cannot guarantee a minimum number of hours each week. This would amount to undue influence or pressure.
  • Misrepresentation would occur if a manager told a long-term casual employee that she was not entitled to maternity leave, knowing that this was not true.
  • A manager tells employees at a work social function that all their sick leave entitlements will be suspended until an urgent work project is completed. If the statement was perceived as a joke delivered in a social context, it would not be regarded as adverse action because it would not be expected that employees would rely on it as a true indication of the employer’s intentions.
  • A group of employees, informally formed to represent the views of employees on OHS issues in the workplace, approach their employer regarding concerns about lack of secure car parking when they work overtime at night. The employees will be protected from adverse action because they will be part of an 'industrial association' representing employees.
  • A union organises protected industrial action against an employer who made unpopular changes to work rosters. One employee who is happy with the changes declines to take part in the action. The union is prohibited from taking adverse action against this employee.
Further information about conferences
The two conferences where workplace rights were discussed are note below.
Further information about the Australian Workplace Relations Summit can be viewed here
For further information about the Workplace Research Centre conference, click here
Source: Mike Toten, HR writer.
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